USA – MINNESOTA Trends and Developments Contributed by: Barry Landy, Jacob Siegel and Patrick “Gus” Cochran, Ciresi Conlin LLP
• The existence of a trade secret is not negated merely because an employee or other person has acquired the trade secret without express or specific notice that it is a trade secret if, under all the circumstances, the employee or other person knows or has reason to know that the owner intends or expects the secrecy of the type of information comprising the trade secret to be maintained. Id. This qualification, which was added to the stat - ute in 1985, appears to find its origin in Electro-Craft Corp. v Controlled Motion, Inc. , 332 N.W.2d 890 (Minn. 1983), the Minnesota Supreme Court’s earliest effort to interpret the MUTSA. In Electro-Craft Corp. , the court concluded that the plaintiff had not taken reasonable measures to maintain the secrecy of its confidential information. In reaching that conclusion, the court’s analysis turned in large part on its conclu - sion that the plaintiff “should have let its employees know in no uncertain terms” that the features in ques - tion were secret. Id. at 902-03. After the amendment, the statute clearly differentiates between explicit notice that the owner of the trade secret considers it to be confidential, which is not required, and the requirement of reasonable efforts to maintain secrecy. To be sure, labelling of confidential evidence is relevant – often highly relevant – evidence of reasonable efforts, but it is “not dispositive on the issue”. Nw. Airlines v Am. Airlines , 853 F. Supp. 1110, 1115 (D. Minn. 1994). Instead, Minnesota courts typically make a holistic determination considering a variety of additional fac - tors, such as the following: • Does the plaintiff have policies about what informa - tion employees should keep confidential? • Does the plaintiff share information only on a “need to know basis”? • Does the plaintiff require employees and others with access to the assertedly trade secret informa - tion to enter into appropriate contractual agree - ments? • Does the plaintiff use appropriate physical and technological safeguards?
See, eg, Orbital Eng’g, Inc. v Short Elliott Hendrickson, Inc. , 2025 WL 3251425, at *5 (D. Minn. Nov 21, 2025). The issue of whether efforts undertaken to protect secrecy are reasonable is a question of fact that often cannot be resolved before trial. See, eg, Advantage Sales & Mktg. LLC v McClellan , 2023 WL 9056124, at *3 (D. Minn. Nov 14, 2023). Because a determination of reasonable efforts is fact-dependent and not capa - ble of precise definition, this is a perennially litigated issue in Minnesota courts. Minnesota Courts Decline to Apply the MUTSA to Extraterritorial Conduct A threshold consideration for trade secret claimants and defendants is extraterritoriality – ie, the reach of a given trade secret law in relation to cases naming foreign defendants or alleging misappropriation that has occurred outside a given jurisdiction. The fed - eral DTSA, for example, contains an extraterritoriality provision limiting its application as to foreign defend - ants. DTSA plaintiffs cannot sue for misappropria - tion occurring outside the USA unless either: (i) the defendant is a US citizen or permanent resident or an entity organised under the laws of the USA; or (ii) “an act in furtherance of the offense” was committed in the USA. See 18 U.S.C. § 1837. Depending on the facts of the case, whether an act has been commit - ted inside the USA and sufficiently “in furtherance of” misappropriation can invite considerable debate. The MUTSA, by contrast, contains no analogous pro - vision defining its reach as to foreign defendants or conduct occurring outside of Minnesota. Neverthe - less, one court has recently opined that a similar test governs its reach. The federal district court invoked the “general presumption that Minnesota statutes don’t apply extraterritorially”, observing that the “leg - islature did not state an express intent for MUTSA to apply to out-of-state conduct, as is required to over - come this presumption”. Bepex International, LLC v Micron BV , 2023 WL 2975699, at *10 (D. Minn. Apr. 17, 2023). The court held that because it had already found there was no “act in furtherance of the offense” committed in the USA, there was necessarily no such act committed in Minnesota, meaning the MUTSA claims failed as a matter of law. Id.
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